Thursday, April 15, 2010

From comments, James objects to my advocacy for pardon-plus-commission, and points to Watergate and Iran-Contra. He asks:

What is your assessment of the Watergate and Iran-Contra pardons? You apparently don't think they have been as damaging in the long term as I do. Just let bygones be bygones? What kind of effect does that have in the long term? I ask sincerely.

Others chimed in with similar concerns. I'll run through a bit of history, and then try to answer the question. But to be clear: I do not think that pardon-plus commission is the same as "let bygones be bygones."

The only Watergate pardon was Nixon himself. Lots of people went to jail -- the president's chief of staff, his political director (wasn't his title, but...), his chief domestic adviser, the WH counsel, and quite a few other people. Of those who clearly committed crimes in Watergate, the only ones to really re-enter politics were Liddy, as a right-wing yakker; Chuck Colson, who seems to have become a behind-the-scenes adviser to conservative groups in addition to his prison ministry work; and John Dean, who writes books that foolish liberals buy. Well, Nixon also wrote a ton of books and did talk to Republican leaders, eventually, behind the scenes. Of other Nixon-era figures who went on to careers with the GOP, most were either fully uninvolved with any of the Watergate stuff (Pat Buchanan and David Gergen, for example, were totally clean of anything as far as I know). I suppose the exceptions are Fred Malik (not a criminal in Watergate; he counted the Jews at the IRS at Nixon's request, then became a GOP power player); Henry Kissinger (probably not involved in Watergate, but involved in illegal tapping, and of course he's been accused of a wide variety of international misbehavior); and Al Haig (on the periphery of various things, and may have tried to cut a pardon deal for Nixon with Ford). I find it very, very difficult to believe that any high-level White House or executive branch staff could look at Watergate and believe that criminal activity wasn't risky; the only one who really came out ahead was Liddy, and a lot of careers, as well as reputations, were ruined.

Iran-Contra was a lot different. On Iran-Contra, IIRC, there were something like five pardons, with the big one being Cap Weinberger. I'll look it up because I can't spell Weinberger...oops, sorry, six pardons. The pardons happened Christmas 1992, six years after the scandal. As far as I know, the only one of the six to re-enter politics was Elliot Abrams (who had copped a misdemeanor plea), who served in some capacity during the G.W. Bush administration. Ollie North was not pardoned, and IIRC he was convicted but the conviction was overturned; he re-entered politics as a failed Senate candidate and then as a yakker. Same thing with Admiral John Poindexter: convicted, conviction overturned, and returned to government during the G.W. Bush administration. As far as I know, no one else directly involved in Iran-Contra (as opposed to general Central American policy) has played any part in politics since 1986. I doubt that Abrams, North, and Poindexter believe Iran-Contra helped their careers, but it's a lot better case than it was for the Watergate felons.

That's the history; now to think about it a little. I can see arguments either way on Ford's pardon of Nixon, but on balance I think it was the right thing to do. Thirty-five years on, I don't think Nixon's reputation is any better than it would have been had he been put on trial, convicted, and jailed. Probably more to the point, I don't think that the crimes that Nixon and his people committed would have been any more or less rejected had Nixon been jailed. Especially since Nixon would only have been indicted for the cover-up, and not the original crimes -- and the one thing that I think it too bad is that people mistakenly believe that a lesson of Watergate is that the cover-up is the problem. (Nixon probably committed felonies before the break-in, but as I said we don't know that for a fact. However, Haldeman, Ehrlichman, Mitchell, Magruder, and Colson (among others) all had committed felonies before the break-in, and while it's vaguely possible that Nixon could have survived in office had all of them turned themselves in on June 18, 1972 and confessed to everything they had done, it seems rather unlikely to me). As far as an example, it is possible that future presidents may have taken comfort in the Nixon pardon, but hard to believe that anyone in the presidential or executive branches (or on campaign staff) did so, since everyone but the president spent time in prison.

Iran-Contra is a much more difficult question. I have a lot less sympathy for the Iran-Contra pardons, although I don't think it's entirely unreasonable to believe that the independent counsel in that case (Lawrence Walsh) was...I don't want to say out of control, but I've never really been convinced that it was a great idea to be moving to a trial of Cap Weinberger over six years and what would have been two presidencies after Iran-Contra. Obviously, in the case of Iran-Contra, the various public investigations were long over with by the time of the pardons, and whatever George H.W. Bush intended, they were taken as vindication, with most Republicans believing that Walsh and the Democrats had criminalized policy differences (which, in my view, was absolutely not true). On the whole, I tend to agree with commenter James and other commenters that the Iran-Contra aftermath (which consisted of a presidential commission, followed by a Congressional investigation, followed by a never-ending independent counsel operation, followed by pardons by the president who had been involved in the scandal in the first place) was awful. While on balance I think those who were caught up in the legal consequences of Iran-Contra probably did feel that they had suffered, they also wound up feeling that they were unfairly stigmatized -- and Republicans generally agreed. The consequences, mild as they were, probably did serve as a deterrent for future illegal activity, but a very mild one at best.

I think it's awfully hard, however, to argue that pardons were the key step. The entire process broke down. Looking back, I don't know what would have been better. But I do think that one of the lessons for those who believe that torture should be met by prosecutions and prison time is just how difficult that might be, just in practical terms. If the goal, as commenters argue, is to deter future misdeeds, then lengthy prosecutions with uncertain results are unlikely to do the trick, or at least so I believe. Moreover, and this is one of the things I've argued several times before, the shared legal jeopardy across an administration makes everyone a lot less likely to cooperate with investigations. After all, Cap Weinberger wasn't at the heart of Iran-Contra, but he wound up in trouble years later. The truth is that prosecutions for torture might get to the people most responsible -- or might wind up ignoring them, if they were good at covering themselves, and put people tangential to the problem into prison. Or perhaps low-level operatives pay the price, and the people who actually set the policy go free. That's the long-term prognosis for prosecutions. And, given the previous example, there's every possibility that the next Republican president would pardon anyone who does get convicted.

That's certainly not what I am advocating in the present case. I guess what I think is that another drawn-out legal process, like the one from 1987-1992, is likely to get the same results; Republicans will feel persecuted for partisan reasons, or at least claim that they feel that way, and between that and real legal jeopardy for so many people, they will rally around the torturers. Which will mean (and has meant) endorsing torture ever less grudgingly. Basically, I think that the goals of reviving the consensus against torture and of devising good procedures for dealing with terrorists are not compatible with the goal of prosecuting people. I understand those who believe that there's a moral imperative involved in seeking justice for those who committed evil acts. I can't really argue against that. All I can do is to say that politics involves trade-offs, and in this case, if I'm right, satisfying the moral imperative will involve real costs that those who oppose torture, in my opinion, should be reluctant to accept.

As I've said, all of this would be especially true if George W. Bush himself would cooperate by accepting a pardon, admitting to what happened, and denouncing torture. With him (and certainly Powell, and probably Rice if Bush was in, and with those three probably quite a few others) on board, Cheney and his gang would really be isolated. A subsequent truth commission, with legal jeopardy no longer an issue and partisanship at least somewhat subdued, could then, I believe, have a chance to work. The people who carried out the policies, and with any luck at least some of those who initiated the policies, might tell the truth freely. They might explain exactly what happened, that it was torture, that it didn't actually "work" in terms of getting information (assuming that's the case, which I think is most likely), and that it was the wrong thing to do and un-American. Obviously, I could be wrong about that...but I think that there are a lot of people involved who think of themselves as honorable, who got caught up in things that they never expected and were not prepared for, and who probably are not very proud of what they did.

Maybe I'm wrong; maybe everyone involved, from Bush on down, really thinks that torture was something to be proud of. As far as I can tell, Dick Cheney does. But I'm willing to bet that I'm right.

The other cost would have to be that Obama would talk about how Bush started off with the best of intentions, and how overreaction in wartime is a sad but consistent theme in American history, and so Bush is just like Wilson and FDR. I realize that's a very tough pill for liberals to swallow, but I just don't see an alternative that has any better chance of preventing a fully Cheneyized future Republican party, which will, we know, sooner or later wind up back in the White House. Oh, and by the way, pardon would not preclude impeachment and conviction of federal judges (I think it would protect people from being disbarred). However, it wouldn't protect them from losing their jobs or their reputations, which could certainly happen if an honest, open commission puts people in the spotlight.

I guess, all things said, that I'd turn the original question back around: I do think that the aftermath of Iran-Contra went wrong, and I think that something extraordinary should be done so that the aftermath of torture doesn't go wrong. Prosecution, however, isn't something new -- it's exactly what people tried to do in 1987. It didn't work then, and in my view it's even less likely to work now. Pardon -- from a Democrat who opposed the policy, not from a Republican who was involved in it, and before prosecutions, not after years of legal fights -- would be extraordinary. If handled right, and with a little luck, I think it could work. And, again, I just don't know of a viable alternative.

26 comments:

Jonathan,Thank you for this. You have given me much, much food for thought, and I have to get to work. I don't want to comment until I consider the points you've made. It will probably be scrolled off the page before I get back to it, but it's a great post and just what I had hoped for. I'll look forward to reading others' comments as well.

I see now that I've made the mistake of using "pardons" as a proxy for the larger "getting off the hook" and "getting off scot free" or more importantly, "escaping responsibility for one's own bad acts." And too, I am talking about policy-makers, the decision-makers at the highest levels who in the criminal scandals of the last three Republican administrations: Nixon-Ford, Reagan-Bush41, and Bush43. Remember, there are folks in prison for torture - those "bad apples." And so were Colson and North and Poidexter "bad apples."

I don't argue with your recounting of the facts, but I can't agree with your narrow interpretation -- the rot in Nixon and Reagan went much, much deeper than just who actually faced prosecution and who went to jail. That's why I noted the players in 43 whose involvement in Republican policy and politics went all the way back to Nixon. It's probably not productive to revisit that right now.

I take your point that it would be easiest and least disruptive to go ahead with a pardon-with-commission, and I honestly don't know what would happen should an ex-President and ex-Vice President be prosecuted and thrown in prison. You may very well be right that it's the only possible way to extract admissions and responsibility-taking, and that any other way would be too painful.

But I worry about the following:

1) The general feeling, now once again confirmed, that we citizens of the United States of America are incapable of ensuring that the Executive branch and holders of high public office and their advisers and their staff are subject to the laws of the land. That if one is powerful enough, holds an office high enough, has enough friends in high places, if the crime is large enough or terrible enough, that there is a separate and different treatment for them. That no matter what they do, these powerful men, we will never be able to hold them accountable, that they will always escape responsibility for their bad acts and there is nothing we citizens can do about it. We already know that, I guess.

2) When those who are hungry for power see time and again that the most powerful people are not subject to ordinary laws and may disregard their oath of office with impunity, that the government is incapable of holding them to account for their acts, then what lesson do they take? Don't they gain confidence that they, too, can act with impunity when they get there?

I lack the background to analyze the long-term consequences of these criminal scandals and their aftermath, and I lack the ability to fully articulate my unease with another round of pardons. I don't think much of the commission idea; the 911 commission was entirely unsatisfactory, as was the investigation of Iran-Contra. Maybe we Americans just have to learn to live with criminal Republican administrations. That's what you're saying, ultimately, aren't you, Jonathan?

Thanks for such a good, thoughtful post. It really added more light than heat, and that's what I had hoped for. We need to have a public conversation on this among people of good will, and that's why I asked.

This is a good analysis and I'm almost prepared to agree with it, except for one thing: The Anti-Torture Convention -- a treaty that the U.S. freely entered into (under Ronald Reagan, no less), and that, as a treaty, has the same force in law as the U.S. Constitution itself -- requires that credible charges of torture be referred to the competent authorities for *prosecution*, not just for fact-finding. It doesn't say you're excused from doing this if it's politically difficult, nor does it make any provision for pardons or truth commissions as an adequate substitute.

So, which is it going to be: Is the U.S. going to renounce and withdraw from the ATC, or is it going to declare itself unbound by its own treaties and, therefore, by its own Constitution? And how will it then demand compliance with treaty obligations from other states?

Thanks to all for the comments, on this and the previous post. I agree with James -- it's good to know this stuff can be discussed properly, whatever people wind up concluding.

J. Smith,

I think that's a fair point...but I suspect that other nations would be more than happy to turn a blind eye to treaty obligations in exchange for the US actually taking serious steps to live up to it in the future.

James,

I definitely understand your frustration. I don't disagree with the reaction. To me, though, the question remains of what to do about it. I think the question really comes down to what Barry and anon said, which is skepticism about whether my approach would "work" in the sense of separating the bulk of the GOP from the Cheney position. I certainly can't know that it would...I've made my case why I think it's a reasonable gamble, and I'm sure I'll make it again.

FDR went behind the back of Congress to help the British in WW2, and I have never known a liberal/progressive to argue that he was wrong to do so. See The Imperial Presidency, by Arthur Schlesinger.

I can't shake the feeling that left/liberal indignation about Iran/Contra is mostly about the policy difference. What if a Democratic administration did the same things in support of a progressive foreign policy objective, such as hastening the end of apartheid?

In any case, it is morally obtuse to equate torture with 'lying to Congress'. It trivializes the entire discussion.

I don't think anyone "equated" torture with perjury. I see it more as a continuum of criminality. The Bushies perjuring themselves in front of Congress and refusing to appear before Congress in contempt of subpoena are other examples of the lawless nature of the Bush43 administration. Not really the same as "policy differences" though some would like to paint it that way. "What if's" are not actual acts.

Jonathan, thanks again. Are you having any discussion on this subject in academia? Are experts in political science having discussions about this outside the blogosphere and the public eye? Besides the "moral outrage," which I guess is unseemly to have, I just think that the bushies and their predecessors have exposed the absolute limit of how American government can function, the limits of "checks and balances" if you will. I'd be comforted to know that your colleagues have recognized that.

The pardon of Nixon is the poisoned well from which all these later crimes flowed.

I don't think either our political system or our politicized legal system is mature enough to handle this. (I wouldn't have said that 30 years ago, but facts must be faced.) I still think that we will see trials here at the international level, and I still think that we will see them by 2020 or so (my original prediction from 2004). The wheels grind slow, but they only grind in one direction.

By the way, Presidential pardons have no weight against the Geneva Conventions, at least not at the International level.

"if George W. Bush himself would cooperate by accepting a pardon, admitting to what happened, and denouncing torture." Yeah, and if my grandmother had balls she'd be my grandfather. What could possibly make you think that Bush would denounce torture? Cheney did only what Bush permitted him to do; Bush was the torturer-in-chief.

As regards the Bush administration, and the alleged war crimes they committed; the only way to establish a pragmatic legal precedent that prohibits torture is for those who authorized the war crimes to be investigated, brought to trial, and convicted (assuming the evidence warrants conviction, naturally). Whether they are pardoned because they were ignorant of what actually went on (Bush) or still enthusiastic cheerleaders of war crimes (Cheney) is problematic.

And its ironic that the laws put in place to prevent another "Watergate" have been gutted and violated by first the Bush administration, and now the Obama administration. When the DOJ doesn't investigate and bring them to trial, who can/will?

There's still a fundamental flaw in your whole line of argument. You say we should "revive the consensus against torture," and that prosecutions are at a variance with that goal. But all of our various consensuses against other serious crimes are codified in law. No "consensus against bank-robbery" would prevent bank-robbery if bank-robbers could be certain of impunity for their crimes.

I don't want prosecution for reasons that have to do, primarily, with moral satisfaction. I want them because only law enforced by serious penalties prevents crime. No prosecution for torture, no abolition of torture: simple as that. Can you make a case that torture will never reccur in a legal and political environment in which it is known in advance that torture will never be seriously prosecuted?

Yeah, you're right. We should just let illegal activity pass when it is Republicans. Weinberger was found to have purjured himself years later, but we shouldn't bring him up to justice.George Bush Sr. had to admit that he lied in his autobiography in regards to his involvement and Weinberger's diary.

Bernstein you are going to look back on these writings in twenty years with shame and regret should you be lucky enough to still be alive and mentally fit at that time. Try to imagine defending German or Japanese war crimes c. 1945 and suggesting that for national security and international comity, it would be better that we just pardoned everyone involved, to help insure that such things could not happen again.

History is going to take a giant shit on GWB and Dick Cheney and those without the moral compass to do what is right. "Looking Forward not Backward" is a sick sad joke, and will be seen as the original sin of the Obama administration (excepting Geithner of course), and why history will not be kind to him either.

Dragging America's good name down is going to have a fearsome price- a lot more than dealing some missles to some terrorists or breaking into an office and lying about it, or even fibbing about a few blowjobs. The price will be paid, nothing can stop it, and there are millions upon millions upon millions of people who are still white-hot angry about it. The political class just does not know it yet, as usual.

Dragging America's good name down is going to have a fearsome price- a lot more than dealing some missiles to some terrorists or breaking into an office and lying about it, or even fibbing about a few blowjobs.

At the time I thought it was clear that the Sandinistas were importing Cuba-style tyranny into Nicaragua. Intervening against them may or may not have been wise policy. But I could never see it as the heinous offense that it naturally seemed to those who sympathized with the Sandinistas.

Count me among the millions still white-hot angry about it. Torture is as un-American as it gets - worse, it's in-human. It is absolutely unjustifiable under any circumstance.

This attitude that it's somehow too politically difficult and painful to prosecute high officials is precisely why our government is free to institute policies which clearly violate our Constitution, International Law, and our own conscience.

You are glossing over a lot of very dark history with your "Intervening against them may or may not have been wise policy." Perhaps you are too young and/or not very knowledgable about the full scope of the Iran-Contra affair.

Please don't assume that my concern with the crimes committed at the highest levels of the US government was a matter of "sympathizing" with the Sandinistas. That's insulting, actually.

For those who believe with Egypt Steve that prosecution is the best (or only) way to prevent a future torture policy...I don't want to rerun the full case for pardon in a comment, but see the two posts linked to in the upper right (under "Ones I Liked"). In short, Truth and Reconciliation Commissions have worked in other nations, and in some cases, in my view, such a commission is far more likely to be successful in this situation than are prosecutions.

To R. Punk and others, it's true that millions of Americans are angry about torture. It is also true, like or or not, that more or less equal numbers of Americans think that "24" is a great example of how things work, and that if not for torture the terrorists would have nuked several American cities by now. And then there are far more people who just don't care about it, or don't want to think about it. As long as the GOP is resolutely pro-torture, that situation isn't going to change, prosecution or no, at least not in my opinion.

On the Bush point...I've touched on the case that he might cooperate in the past, but I think I'll write up the full case for why I think it's plausible next week. I agree that my case is a lot stronger if Bush would go along with it, although I think it's the best course either way.

I have about zero faith that an American Truth and Reconciliation Commission will yield anything like the truth, much less result in reconciliation. My prediction is that at the conclusion of said Truth and Reconciliation Commission, the whole debacle will be spun as "policy differences."

I agree with you, Jonathan, that prosecutions are unlikely, and if they happen, all the difficulties and unknowns, known and unknown, are sure to apply. That's why I'm inclined to go with an international commission, and to wait until after Obama's sixth year.

And so I come back to my original question: As a political scientist, what do you think about the long-term damage to our political infrastructure when we Americans find that we have no way to deal with people holding high elected office who commit even the most egregious crimes; that the "checks and balances" of American government only work when the Executive branch voluntarily (it seems) complies with the laws and treaties it is bound to defend; that we have no way to rein in a rogue Executive branch who has no intention of governing in good faith.

Truth and Reconciliation Commissions have worked in other nations . . .

Those TRCs followed civil conflicts. The atrocities were not repeated because the conflicts were over. Claiming this as evidence that TRCs can substitute for actual prosecutions as a deterrent is taking post hoc ergo propter hoc beyond absurdity.

The 'war on terror' may well be endless, if anyone needs reminding on that point.

I expect an American TRC would fail spectacularly because of mass refusal to co-operate. Conservatives would make support for such refusal a movement litmus test, and co-operators would be stigmatized as traitors. With no credible threat of prosecution there would no incentive in the other direction.

Bernstein you need to switch the lens on your mental camera. In Russia and Germany and Japan, the societies were generally fine with what was going on- no doubt heavy pluralities would have approved and contemporary prosecution would have been politically difficult- after all, even the worst of the terror was mostly the other guy.

But in time, the rot comes out. History is merciless and the shame grows and grows- because right is right and evil is evil, and enough good people transmit the shame forward, because 8 out of 10 people ARE good, at all times and in every culture. Its happening right now in your own culture, but you are not seeing and feeling the depth of it- but it's there. I spit Bush and Cheney's name, and those millions I speak of do too, and we care a lot more than people who are abstractly OK with torture and imperitors.

When you use the right lens, you will see what this will look like in 20 years, and those for it or minimizing it today will be silent: and shamed.

Jonathan, I am glad you will write up why you think there is a reasonable case GWB would accept a pardon, because that seems to be the main weakness in your proposal.

I think you need to either make a persuasive case that it is probable that Bush would go along, or shift gears and make a persuasive case that it is the best path even if no one accepts a pardon and the Republicans form a solid resisting block, shocked, shocked! that patriotic Americans are being impugned by wimpy-Democrats-thank-god-they-weren't-in-power-on-9/11-real-men-make-tough-choices-blah-blah-blah.

I tend to think that any Republican, GWB included, who accepts a pardon would be cast out with fury. Furthermore, there is a lot of pent up anger against GWB on the right for bringing Republican fortunes so low. I suspect GWB is well aware of it, and does not want to give the right a reason to unleash their wrath. I have never seen anything particularly heroic in GWB's character, and that seem to be what you are banking on.

Given these reservations I tend to think your path remains the least bad among those available.

To Revisionist Punk & co:

Obama's present path is to replicate most of the Bush legal arguments and to elide the issue as much as possible. A T&R commission is more accountability than we are getting so far, so Bernstein's proposal will look better than what is now happening.

History does not look kindly on noble failures. If Obama takes the criminals to court and fails to get convictions he will simultaneously harden the Republicans into a pro-torture stance. History will not be kind to that result, especially after the next Republican president tortures again. Obama will be seen as right on principle, yet a failure as a leader. Keep in mind that history is kind to FDR even though he ordered the Japanese internment. History is kind to Truman even though he ordered the Nagasaki bomb drop. (Dave Barry said it best "It was Truman who made the difficult decision to drop the first atomic bomb on the Japanese city of Hiroshima, the rationale being that only such a devastating, horrendous display of destructive power would convince Japan that it had to surrender. Truman also made the decision to drop the second atomic bomb on Nagasaki, the rationale being that, hey, we had another bomb")(Sorry for the long quote, it is so great I can't resist)

Posterity is willing to consider political reality, and presidents who are careful to lead only as quickly as the people will follow are looked on kindly.

You make some very convincing points, Tom, with respect to history and "noble failures."

I have little confidence that a T&R commission will do much in the way of "accountability." There was zero "accountability" with the 911 Commission (I wonder if Zelikow now regrets his suppression of evidence of incompetence on the part of his bosses) nor with the Iran-Contra investigation, nor with the Warren Commission for that matter. These have all been whitewashes and coverups. Maybe it wasn't the original intention, but it was the result. In fact, do we have any examples of such American efforts that satisfactorily brought accountability for crimes and misdeeds or even incompetence? I'm not even talking about handing down indictments, just an articulation of fault, incompetence, and wrongdoing. I can't think of any in my lifetime, but I may be wrong.

In fact, do we have any examples of such American efforts that satisfactorily brought accountability for crimes and misdeeds or even incompetence? I'm not even talking about handing down indictments, just an articulation of fault, incompetence, and wrongdoing.

The Church Committee. No indictments, because of statute of limitations issues.